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AIDS groups sway attorney general on nondisclosure cases

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AIDS groups sway attorney general on nondisclosure cases

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Ontario drafting prosecutorial guidelines
Ontario will help prosecutors decide when to lay criminal charges and when to back off in HIV-related cases.

The office of the attorney general confirms it is drafting guidelines for cases of HIV-positive people who have sex without disclosing their status.

In September 2010, the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) launched a campaign aimed at Attorney General Chris Bentley; they asked the province to undergo consultations and put together guidelines for prosecutors. Their petition has roughly 1,000 signatures.

Without a provincial standard, people living with HIV can’t be sure what kinds of sexual activity could land them in jail, AIDS activists say. They’re hoping that guidelines will limit the scope of the law and provide clarity for HIV-positive communities.

“I think that it’s good news. The working group applauds them,” says Ryan Peck, director of the HIV and AIDS Legal Clinic Ontario (HALCO), which is part of CLHE.

The attorney general’s office has not said when the document will be ready. CLHE has asked for a timeline and is waiting for a response, Peck says. Xtra’s request to the attorney general’s office for a timeline also went unanswered.

The UK released similar guidelines in 2008 and now limits prosecutions to cases where there was intent to transmit HIV or recklessness and someone became infected.

In Canada, HIV-positive people have been charged when there was no transmission, even for low-risk encounters like oral sex. In some cases, trial judges don’t seem to understand the evolution of the health and science of HIV over the past two decades. Those cases are often appealed, says Glenn Betteridge, a lawyer and member of the CHLE. But that’s expensive and amounts to precedent being made “on the backs of people living with HIV.”

“There’s an argument to be made that, well, that’s what appeal courts are for. But if courts and judges are getting it wrong or are misinformed, then an injustice is being done,” he says.

Prosecutorial guidelines are intended to fix that, says Betteridge. The attorney general’s guidelines will also raise awareness among prosecutors about the science of HIV, he adds.

Bentley indicated as early as November that he was willing to listen to AIDS groups, but he stopped short of saying definitively whether or not his office would produce guidelines. Peck says he got word in December that guidelines were in the works.

Prosecutorial guidelines represent an uneasy compromise for those who have long argued that criminal law has no place in what is essentially a public health matter. But in the absence of federal legislation overriding the Supreme Court of Canada’s 1998 Cuerrier decision (which ruled that knowingly exposing a sexual partner to HIV is a prosecutable crime), those involved have turned to other avenues to reduce the harm caused by the law’s intervention.

At the same time that they push the province on prosecutorial guidelines, groups like the Canadian HIV/AIDS Legal Network (CHALN) are providing information to defence lawyers preparing individual cases. They’re also following Manitoba and Quebec cases that are likely headed to the Supreme Court, says CHALN’s Cécile Kazatchkine.

“It’s not about supporting or not supporting criminalization. It’s about minimizing the harm of the current use of the criminal law,” she says. “Hopefully, we can agree on how we can, given the current situation, mitigate the impact of criminalization and minimize the number of prosecutions.”

The working group is helping to gather information about what prosecutorial guidelines ought to look like. They’re still ironing out the details, but with the help of a $50,000 grant from the MAC AIDS Fund they will hold focus groups with people living with HIV, AIDS service organizations, researchers and scientists, public health officials, women’s sexual assault service providers and legal experts. They plan to meet in Toronto, Ottawa, London and Northern Ontario in March.

They hope that, in the end, their consultations “will influence the deliberations that will hopefully be ongoing at the Ministry of the Attorney General,” says Betteridge.

Join the CLHE in calling for prosecutorial guidelines by signing their petition here.
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Comments

A conflict of interest
The current debate about criminal sanctions for HIV non-disclosure and the need for prosecutorial guidelines does show how most publicly-funded AIDS and HIV organizations have a conflict of interest. The problem is that many of these organizations have potentially conflicting mandates: (1) HIV prevention programs for HIV-negative people, and (2) support and advocacy programs for HIV-positive people. These organizations receive government grants and public donations for both mandates. As part of their advocacy role for HIV-positive people, it’s not surprising that most publicly-funded HIV organizations have issued position papers against criminal sanctions for HIV-positive people who have unprotected sex without disclosing their HIV status to their sexual partners. Since many of these organizations are either controlled by HIV-positive people or see HIV-positive people as their core constituency, it’s not surprising that their HIV prevention campaigns have been “soft” (e.g., giving condoms to owners of gay bathhouses and gay bars), rather than “hard” (e.g., using strong words and images to warn people about HIV). That’s where the conflict of interest occurs. In the past, AIDS organizations have avoided “hard” HIV prevention campaigns out of a fear of further stigmatizing HIV-positive people and offending their core constituency. But since HIV-negative people continue to get infected with HIV every year, the “soft” prevention campaigns appear to no longer be working. Maybe it’s now time for governments and large donors to redirect their HIV prevention budgets. Maybe those prevention funds should now go to new organizations that see HIV prevention as their sole mandate and that see HIV-negative people as their core constituency.
Protect yourself - no one else will
"A very difficult infection to get?" I think not. Lots of people will tell you that they became infected with HIV after only one episode of unprotected anal sex as the bottom. If you're HIV negative, protect yourself. No one else will. If you have questions about the risks of HIV transmission, consult a qualified medical professional or public health agency. Don't rely on the words of casual sex partners or HIV activists to keep you healthy.
Half of men have HPV
Maybe u missed it. World health scientists said this week half of men have the HPV infection. We don't know it. Causes various cancers eventually in men and in women who a guy is intimate with. KEEP in mind that HIV is said to be "a very difficult infection to get", (AIDS researchers.) You have to "force" it into the blood of your partner. For now, be extra careful guys no matter what the law says.
Why this should be a federal issue
The reason that movement is happening at a provincial level is because there is no movement at the Federal level, which is really where the entire issue of criminal responsibility should be addressed. Criminal law is a Federal issue. Right now the law is unclear on where responsibility lies around the criminality of intentional transmission of a disease and what exactly constituents a criminal act and what is more a civil tort, and what is just plan risk of having sex. This leaves a situation where judges are making case-by-case decisions and people looking at this issue are left confused with a variety of presidents and an unclear concept of disclosure. Also, it isn't just HIV, what about someone with HEP who does the same? This issue needs to focus around the behaviours and not the health status of people. The criminal laws should be clarified so that prosecutors around the country don't try to jury-rig a solution for a situations where the law is not clear. Regardless of where you fall on this debate, addressing this issue through prosecutorial guidelines is a band-aid at best because guidelines are not binding and not written into law. I'm happy that there is some movement to try to bring clarity to the issue. I just wish that the clarity could be done the right way with in-depth government consultation and meaningful & thoughtful changes to the law to bring clear clarity over everyone's responsibility and assumption of risk.
Clarity for All, Please...
When so many new HIV infections come from people who don't know their status while engaging in risky behavior, it's crucial the law make the distinction between deliberately trying to infect someone with the virus and those who seek legal remedy after making bad choices. That latter group could be asking why they didn't use a condom, not about who they can take to court.
"They’re hoping that guidelines will limit the scope of the law and provide clarity for HIV-positive communities." It's discouraging that this discussion is framed as being needed for poz communities when, in fact, it should be clarifying things for EVERYONE. If an HIV negative person fails to ask their sexual partner about status or other sexually transmitted infections and then engages in what everyone knows to be a high-risk activity anyways, what is their own legal liability should they become infected? Do HIV positive people also get to sue a past sex partner over the mental anguish caused by having accidentally infected them? Devil's advocate? Yes. Slippery slope? Yes. Responsibility is a two-way street. Frankly, if you're going to be unsafe you're better off to play with a poz guy on meds and an undetectable viral load than with that "negative" guy who was "last tested" on some random date, but who has a viral load through the roof and doesn't know it. Strange...in that scenario, only the poz guy would get arrested. Nothing is fair or just about that. Keep the legal system out of public health matters.
Prosecutions are provincial
Jason, I don't see why you're attacking the federal Conservatives on this point. Although the Criminal Code is a federal statute passed by the federal Parliament, it is administered by the provinces. So, the Xtra story about the Ontario Liberal government planning to make guidelines for its prosecutors is good news. There is no HIV-specific offense in the Criminal Code. When a provincial prosecutor charges an HIV positive person for non-disclosure, they use the provisions in the criminal code for assault, etc. (which are not HIV-specific). You seem to be suggesting that the Conservatives should put HIV specific provisions in the Criminal Code and I'm not sure that's a good thing. It may be opening up a can of worms.
Mostly good news all around
Great job to the writer for a very balanced report. While it is great to see action on this issue, it is still a shame there isn't the political will to bring clarity directly to the law. There is no benefit to the Conservatives to bring this issue forward, all that would do would cause a wedge issue where the Conservatives would never come out of ahead. As long as they are in power I see the Conservatives trying to back burner issues that surround intentional transmission of disease. Funny for a government that has been very vocal against the courts shaping the law. they seem rather content to let the courts be on this issue and that's a shame.
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